Telemedicine: Medical-Legal Aspects
Telemedicine article written by: Adam W. Christensen, JD, MBA, Blake D. Christensen, DO, Nazette Zuhdi, JD, LLM, Jonathon M. Miles, JD, Adrian Maurer, MD, S. Sandy Sanbar, MD, PhD, JD
Of all the professions one could think of to associate with the word precise many would probably list medicine and law among their top associations. It’s important to know what you’re talking about when it comes to these professions, doubly so when the two professions meet. To show that the lawyers at Christensen Law in OKC know their stuff, below we have an article on telemedicine written by Adam W. Christensen for Bulletin.
Telemedicine has come of age both nationally and internationally. In 1997, the Oklahoma Telemedicine Act (OTA) was passed. The OTA states that all health care service plans, disability insurer programs, workers’ compensation programs, or state Medicaid managed care program contracts are to include coverage for telemedicine services, where appropriate, as determined by a health care provider*.
Telemedicine is broadly defined under the OTA as the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, or exchange of medical education by means of audio, video, or data communications**. It encompasses such issues as emails, physician-patient communications and transfer of patient medical information from clinic to clinic and facility to facility. Telemedicine has demonstrated its potential to offer widespread access to medical care while at the same time reducing health care costs. Doctors can conduct video consultations with others in the same state, in other states and abroad. Telemedicine, however, does not include consultations provided by telephone or fax machine. There is no universal law of telemedicine. States take significantly different approaches to regulating it. Indeed there are many regulatory and legal issues to consider when developing a mobile app that involves exchange of healthcare information, an online health and wellness platform involving healthcare data, or another telemedicine or telehealth project. Regulatory and legal issues include:
• Privacy and Confidentiality
• Informed Consent
• Malpractice Due To Equipment Failure and General Liability Principles
• Jurisdiction and Registration, Jurisdiction and Liability
• Malpractice Liability, Negligence, Duty of Care, Standard of Care, and Negligence for Not Using Telemedicine Regulation of Telemedicine and Telehealth by State, Licensing, and Professional Disciplines
• Ethical Constraints in a Given Profession (such as medicine, psychology, psychiatry, or counseling)
• Insurance Issues Including Insurance Fraud, Billing and Coding, Medicare and Medicaid Fraud/Abuse, FeeSplitting, Kickback Law and Stark, and Healthcare Fraud.
Giving information on the Internet regarding generic health care conditions is legally permissible. However, giving information tailored to a specific patient, considered as diagnosis and treatment of a medical condition, is controlled by the medical licensing statutes. Telemedicine providers who don’t recognize the differences may run afoul of current law and regulation.
In Oklahoma, the health care practitioner who is in physical contact with the patient has the ultimate authority over the care of the patient and needs to obtain informed consent from the patient. If the patient wishes to utilize telemedicine, a detailed explanation of the risks and benefits and potential privacy concerns must be discussed. Telemedicine in Oklahoma is not centralized, but primarily offered through collaborative telemedicine networks and individual providers. Oklahoma supports telemedicine through the state’s high speed intrastate network, OneNet.
One thing is for certain: telemedicine is evolving and will enhance the physician’s ability to deliver medical care. Rural hospitals, not-for-profit hospitals, public health departments, correctional and military facilities and people involved in emergency response situations like the May 20, 2013, tornado, all have need for the utilization of telemedicine.
A fully developed and sophisticated communications infrastructure is needed to transport telemedicine information. However, this infrastructure is absent in many of the area’s most in need. Perhaps in the future, there will be ways to fund the telecommunications infrastructure and site equipment. The good news is the technology is here. Perhaps political forces will team up to find ways to fund the use of telemedicine and eliminate the barriers that are stunting its growth.
Telemedicine can be a powerful tool, but the restrictions on its use are currently governed state-to-state. If you’re in Oklahoma and have any questions about how your state regulates telemedicines; the lawyers at Christensen Law in OKC can help you get the most out of this powerful tool.
*§36-6803. Added by Laws 1997, c. 209, §1, eff. July 1, 1997
** §36-6802. Added by Laws 1997, c. 209, §1, eff. July 1, 1997